DHS Will Make Additional H-2B Visas Available for Employment in FY 2021
April 20, 2021
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At a Glance
- Employers will soon be able to petition for an additional 22,000 H-2B quota numbers for temporary non-agricultural employment in FY 2021. Six thousand of these visas will be reserved for nationals of El Salvador, Guatemala, and Honduras.
- Petitioners will need to attest that their business is likely to suffer irreparable harm if they are unable to hire additional H-2B workers.
- DHS is expected to issue petition filing instructions for the additional quota numbers in the coming months.
A closer look
An additional 22,000 H-2B visa numbers will be authorized for temporary non-agricultural employment in FY 2021, the Department of Homeland Security (DHS) announced today. Additionally, consistent with President Biden’s Executive Order 14010 (“Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border”), 6,000 of these visas will be reserved for nationals of the Northern Triangle countries of El Salvador, Guatemala, and Honduras. The standard FY 2021 H-2B cap was reached on February 12, 2021, so these supplemental numbers provide an additional opportunity for certain H-2B employers.
As with prior supplemental increases, employers will be required to attest that their business is at risk of irreparable harm without the additional workers. Employers will also be able to hire workers who are already present in the United States in H-2B status without waiting for approval of the new petition. The supplemental increase applies to FY 2021 only and does not affect the H-2B program in future fiscal years.
Employers seeking H-2B workers must test the U.S. labor market and certify in their petitions that there are not enough U.S. workers who are able, willing, qualified, and available for the offered positions; and that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The supplemental increase will mean businesses seeking new H-2B workers will need to engage in additional recruitment efforts.
Filing instructions expected soon
In the coming months, DHS is expected to publish a temporary final rule setting forth filing procedures for the additional H-2B numbers. Petitioners are expected to be required to submit USCIS Form I-129, a valid temporary labor certification approved by DOL and an attestation on a separate DOL form.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
